Beware of Social Media for Screening

There's no hotter trend in background screening than social media. But just as social networks can be used to screen applicants - they also can be abused.

"Employers are using social media to not only look at people initially, bit for ongoing screening as well for current employees," says Lester Rosen, founder of background screening firm Employment Screening Resources.

But this trend comes with a caveat: "Through social media, for the first time perhaps in human history, employers are able to literally look inside someone's head. It's a real treasure trove of information," Rosen says. But is it too much information?

"You're going to learn all sorts of things as an employer that you don't want to know and legally can not be the basis of a decision," he says.

And this is just one of the hottest background screening trends that employers should know.

In an exclusive interview on 2011's trends, Rosen discusses:

Challenges of social media;

The importance of credit reports;

How organizations can screen more effectively.

Rosen, a retired attorney, founded ESR in 1996. In 2003, that firm was rated as the top screening firm in the US in the first independent study of the industry in research report prepared by the Intellectual Capital Group, a division of HR.com. He is a consultant, writer and frequent presenter nationwide on pre-employment screening and safe hiring issues. His speaking appearances have included numerous national and statewide conferences. He has qualified and testified in the California, Florida and Arkansas Superior Court as an employment screening expert on issues surrounding safe hiring and due diligence. He is the author of The Safe Hiring Manual-The Complete Guide to Keeping Criminals, Imposters and Terrorists out of the Workplace." He is also the key presenter in the webinar Avoid Negligent Hiring - Best Practices and Legal Compliance in Background Checks

TOM FIELD: So, it has been a year or so since we spoke. Tell us a little bit about your current work, please.

LESTER ROSEN: Basically, the economy is picking up, and we are seeing that employers are hiring, and that means that more background reports are coming through. Technology is changing, and we are seeing more and more demand for employers to have one-click background checks, and we are helping to lead the way in that as well through integration with applicant tracking systems.

We are also seeing an up-tick in things like international background checks, which are becoming quite important for employers. A lot of new resources are now online, so we have the ability to do that. E-verify is another hot-button issue that employers are asking for assistance on, as well as the things that we have always done such as drug testing, employment verifications and standard background checks.

And also the big news item this year, and I think for the next couple of years are the use and I should say abuse of social network sites/social media searches being used to screen applicants.

Background Screening Trends

FIELD: Les, one of the things that we see certainly is that because of the economy over the past few years, there have been higher incidents of insider abuse within organizations, and so background screening has really come to the forefront. What have you seen as some of the top issues in background screening over this past year?

ROSEN: Well, what we are seeing is an awareness that just doing a background check on the way in, in other words at the point of entry, may not be enough because people can change. And the real problem is, particularly with insider relationships and sensitive IT and financial reporting and so forth, is an effort to also take a look at how a person is doing once they are on the job.

So, there is an emerging trend that has not yet gained widespread acceptance of doing ongoing background checks, particularly criminal records. The jury is still out on that because the type of databases that are being accessed are not entirely complete, up to date or comprehensive, there are issues as to what is relevant, what is related to the job and what to do with it, but certainly that has become an issue.

The second issue related to that in terms of screening applicants as well as ongoing monitoring of employees, particularly key employees in sensitive positions (that is essential IT positions, fiduciary positions, Sarbanes-Oxley regulated areas) is the use of social media. One of the things that we are seeing is that employers are using social media to not only look at people initially, but for ongoing screening as well for current employees.

And the big thing that we are seeing, although this is not something that we offer, but we certainly suggest that employers do it, is to make sure that you have a social media policy; very important point for employers. It is really critical to have in your policy for current employers such things as can you blog? If you blog, what is the consequences of giving away trade secrets or disparaging a competitor or talking about a co-worker or a supervisor? How do you protect the brand? How do you protect security? What about who owns email, so that if an employee is emailing from an office machine, is it clear to the employee that you own that email and you own that machine?

So, there are just a number of issues that basically - one of the big hot issues of 2011 is that if an employer does not have a social media policy concerning the current workforce, then it is time to talk to your counsel or outside attorney (whoever you use) and make sure you have one.

Equally important, and one of the big issues is the use of social media to determine who should get hired in the first place, and that along with credit reports and the allegations of discrimination and the use of criminal records are some of the hot button issues we predict for 2011.

Social Media Use, Abuse

FIELD: Well, social media is definitely something I wanted to follow up with you on because you talked about the use. But a few minutes ago, you talked about the abuse as well. So what are the challenges in using social media in background screening?

ROSEN: Well, with social media and background screening it is the good, the bad and the ugly. The good, of course, is that through social media for the first time, perhaps even in history, employers now are literally able to look inside someone's head. You are able to see what they say in moments when they think employers aren't looking and knowing what they are saying to each other; you know their hobbies and their interests. It's a real treasure-trove of information, and you can really get inside the applicant and learn a lot.

The bad, however, is that there are a number of limitations that employers have to be concerned about. Do you have too much information? Sometimes we call that "TMI," and TMI means you are looking at that applicant, and by looking at their social media site or perhaps a picture or a photo or something that they have blogged about, you are going to learn all sorts of things as an employer you don't want to know and legally cannot be the basis of a decision (such as race, ethnicity, national origin, marital status, sex, sexual orientation, religious preference, etc., etc., etc.). All of those things can lead to what I would call the ugly, which is being sued by the EEOC or being sued by an applicant for discrimination, and there are also issues as to privacy.

There is the myth, I think, that just because something is on the internet, the whole world can see it. But not so fast. When we talk about a reasonable expectation of privacy and what a person can expect to stay private, that is a subject that actually has yet to be litigated. It could depend upon the terms of use of the website, it could depend upon whether the person has set their privacy settings to exclude you, but there is still this fundamental issue that a lot of people think that if they are on Facebook or MySpace or one of the thousands of other social network sites, that it is really just them talking to their friends, and you have no business there. So, it's an open issue.

The problems involved with the whole concept of legal off-duty conduct. There are some states that protect the applicant from almost any kind of discrimination or any type of employer action based upon doing things off duty that are legal.

And of course, the big issue and the big problem for background screening firms is what is real on these social network sites -- authenticity. There are over 300 million Americans, there are people with similar names, there are computer twins, there is the fact that anybody can go on the internet and imitate anybody else and set up a blog and pretend they are somebody else ...

A background firm, of course, has to operate in an environment where we engage in reasonable procedures for maximum possible accuracy, so it is a real challenge for anyone, particularly a background firm, to go online and start harvesting information in the hopes that something there is relevant to the applicant.

So there are a lot of pitfalls ... and employers really need to approach the use of social media sites with a great deal of caution until we start gaining some guidance from court decisions as to what is proper and improper. Right now it is a bit of a wild west, and I think some employers are going to find themselves in hot water unless they really take a moment and stop and thing about how they should use the internet.

Top 10 Trends

FIELD: Well, Les, changing directions a bit, you have got your annual Top Ten Trends list out now. What are some of the highlights (and I am betting social media makes the highlights)?

ROSEN: Well, of course social media is probably one of our highlights. and what we do emphasize in social media is as I mentioned, to really think about what you are doing. One of the suggestions for example we do proffer is that if an employer wants to use social media, they should probably have someone inside their organization look at it and filter out things that are not job related, and only communicate information that is useful and related to the job to the decision maker. And recruiters as well need to be very careful about going on the internet.

Other trends we are taking a look at are the use of credit reports. Four states so far -- the most recent being Illinois effective this year -- have limited the use of employers looking at credit reports out of a concern that credit reports have a disparate impact, that is they discriminate in an unfair way against members of unprotected groups, and legislators have felt in Illinois, Oregon, Washington and Hawaii that there needs to be limits. In California, for three years in a row a bill has passed and not signed by the governor that would have limited credit reports to only very few positions. So you can kind of see the handwriting on the wall with credit reports being an issue with a lot of people being concerned about it.

Just today a congressman introduced an amendment to the FCRA seeking to limit the use of credit reports for employment because of this idea that, particularly in a recession, there is a Catch 22. You have economic dislocation that reflects badly on your credit, and then you can't get a job. It's a lot more complicated than that, but that is kind of the popular opinion, because in fact a credit report for employment does not in fact have a credit score. But we do point out that the trend for employers is that the bottom line is that they use credit reports very carefully with a great deal of caution to ensure it is non-discriminatory and that there is a business justification.

Related to that is criminal records. Criminal records fall under some of the same criticisms. The EEOC, the Equal Employment Opportunity Commission out of Washington, has filed lawsuits, some high-profile lawsuits against a couple of employers alleging that criminal records had been used in such that a way that it created a [negative] impact on unprotected groups and hence were being discriminatory. Again, employers need to make sure that they do not automatically reject somebody with a criminal record, but that there is a business justification. Now some industries, such as banking, there are certain statutes that say certain people with certain criminal records cannot be hired, and then you are protected, and that's statutory.

Those are a couple of the big trends and there are a couple of trends that we are tracking, international records. One important trend for employers is that the National Association for Professional Background Screeners now has an accreditation process, which makes it easier to pick or select a vendor for this service. And we are also looking at international background checks and also warning employers about background checks on temporary workers. After all, you bring in a temporary worker/independent contractor, and you have no idea who they really are, and they have access to your IT, your trade secrets, your customer list, your workplace, and so forth. And oftentimes there are no background checks or insufficient background checks. So those are a few of the trends that we are highlighting for employers in 2011.

Security Concerns

FIELD: Les, of those, what jumps out at you as the trends that would be of particular interest to information security leaders?

ROSEN: Well, information security leaders really want to stress a couple of things. First of all the importance of taking a close look at credit reports. In the area of information technology, there might be a tendency to want to use a credit report, because after all a credit report will tell you if a person was financially stressed.

For example, embezzlement is a crime of motive, opportunity and means. The thought is that if a person is substantially underwater financially, you want to know about that in order to maintain security and make sure no one has motivation to do something.
Just be aware that there is a trend now in those four states I mentioned, and other states are considering it, to ensure that the credit reports are being used fairly, and that there is a business justification for use of the credit report for a particular position.
Another trend I think is important for security leaders is international background checks, and to the extent that firms may have technology workers who are here on visas is just to be aware that just because a visa has been issued, a government background check may not be the same thing as a the type of background check you want for due diligence. So, you want to be aware of that because there are international resources that can be used, and you probably should not assume that just because someone has a visa that they are clear; you still need to do your due diligence.

Screening Smarter

FIELD: Les, everyone wants to do things smarter these days, particularly in background screening. What do you find to be the biggest challenges for organizations that are trying to screen smarter?

ROSEN: Well, the first challenge for any organization is to always go back and take a look at your hiring procedures. Those are the procedures that occur even before there is a background check, and that really revolves around having a smart hiring procedure involving your application, whether you have broad questions on it.

When you are looking at the applications... you want to make sure you are asking some good, solid due diligence questions during your interviews, and most importantly that you are calling all past employers, regardless of whether or not they give you detailed information about the worker. Just the fact that you can verify start date and job title is helpful. You want to make sure that you smarten up your hiring practices even before we get to the background check.

When it comes to the background check, what we are seeing is that employers are now able to use some of the new advancements in Web 2.0 Technology with one-touch background checks -- paperless systems, for example, where you don't have to handle paper at all. The applicant can even sign his or her signature using a mouse, so there are ways to screen a little more quickly and smarter and get a bigger bang for your buck and streamline the process.

Of course, the other thing you might want to take a look at is your background screening vendor to ensure that the vendor is in legal compliance. One of the interesting things about background checks is that it is heavily legally regulated, not only by the Fair Credit Reporting Act, the FCRA, but there are a number of state equivalent laws. There is the Americans with Disabilities Act, there are privacy rules. There are state rules about criminal records and what can and cannot be used; it is really a legal minefield. You really want to make sure that you are working with a firm that understands the ins and outs and legalities, and as I mentioned, there is now a new accreditation standard, so it is easier for businesses to identify those background firms that operate in the gold standard of accreditation by the national trade organization for the background screening industry.

Tips for Better Screening

FIELD: Les, if you could boil it down, what advice would you give to organizations to improve their background screening this year?

ROSEN: Well, the best piece of advice that we can give is to audit, audit, audit. First of all, take a look at the various trends that we have talked about. On our website we happen to have a 25-point audit you can take a look at. You want to just go and review what you are doing and make sure that you are engaged in best practices, that you are using a background screening firm that is accredited, and that you are legally compliant and that you have the best processes and procedures in place prior to submitting the person's name to any background screening company, and that you have the best procedures in terms of background screening in terms of the latest technology and also in terms of ensuring that you are doing the best search really needed for that particular position, and you are doing it with someone that knows what they are doing, so that at the end of the day you have a defensible position.

The bottom line, and no matter how much time and money you spend, there is always a possibility that a bad hire can fall through the cracks. After all, as we tell people, the people who do the best background checks in the world, like the FBI and the CIA. Every once in a while ... the FBI or the CIA has engaged in a bad hire. Well, if they can't hire perfectly, chances are you are not going to hire perfectly every time, either.

But that is really the standard of looking at it is not for perfect hiring, but it is due diligence. Can you demonstrate due diligence with each and every hire, so that if something does go wrong -- and unfortunately it ends in front of a jury -- you are able to stand in front of the jury and outline a good solid program that demonstrates due diligence, that shows that you are concerned about who you hire, that you went through the well thought out program and process and that you did everything right. I think that is what employers need to keep looking at and again, the way you do that is through auditing your program on a yearly basis.

FIELD: Very good. Just one last thing, Les. For people that want to know more about your top trends list, where can they find that?

ROSEN: They can find that on our blog. We have a blog at www.esrcheck.com, so just take a look at where it says news blog and each of the trends are there, and each trend itself is broken down into a what amounts to a white paper that goes into a lot more detail on each of these topics that we have talked about, as well as some additional topics that you may look at too.

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